Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses

Transcription

1 Journal of Gender, Social Policy & the Law Volume 10 Issue 1 Article Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses Leslye E. Orloff Janice V. Kaguyutan Follow this and additional works at: Part of the Immigration Law Commons, Legislation Commons, and the Torts Commons Recommended Citation Orloff, Leslye E. and Janice V. Kaguyutan. "Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses." American University Journal of Gender Social Policy and Law 10, no. 1 (2002): This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital American University Washington College of Law. For more information, please contact fbrown@wcl.american.edu.

2 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant O ERING A HELPING HAND: LEGAL PROTECTIONS OR BATTERED IMMIGRANT WOMEN: A HISTORY O LEGISLATIVE RESPONSES * LESLYE E. ORLO & JANICE V. KAGUYUTAN, ** IMMIGRANT WOMEN PROGRAM O NOW LEGAL DE ENSE AND EDUCATION UND *** * While this Article will primarily discuss protections for battered immigrants, some of the legislative reforms that were included in the Violence Against Women Act of 2000 ( VAWA 2000 ) for the first time also provide protection and immigration relief for immigrant victims of sexual assault, immigrant victims of trafficking, and other immigrant crime victims. A portion of this Article has been expanded and adapted from a paper that was originally written for a grant funded by the National Institutes of Justice. Violence Against Women and Systemic Responses: An Exploratory Study. Principle investigators Edna Erez and Nawal Ammar together with the National Network on Behalf of Battered Immigrant Women. (Grant Number 98WTVX0038). ** The authors have been involved in legislative efforts to improve U.S. immigration and welfare laws protecting battered immigrant women and their children. Leslye E. Orloff, Director of the Immigrant Women Program and Senior Staff Attorney at the NOW Legal Defense and Education und, has since 1989 provided technical assistance to members of Congress on each of the pieces of legislation discussed in this article. Janice v. Kaguyutan, Staff Attorney for the Immigrant Women Program of the NOW Legal Defense and Education und provided technical assistance to Congress on VAWA The Immigrant Women Program is the Washington representative of the National Network on Behalf of Battered Immigrant Women, a network of service providers, lawyers, and advocates, and a national organization concerned with furthering legal protections for abused immigrants. The authors, working with the National Network, have also been involved in monitoring implementation of each of the laws discussed in this article. The National Network on Behalf of Battered Immigrant Women is co-chaired by the Immigrant Women Program of the NOW Legal Defense and Education und, The amily Violence Prevention und, and the National Immigration Project of the National Lawyers Guild. or further information about legal protections for immigrant victims of domestic violence or sexual assault under the laws discussed in this paper, to join the National Network on Behalf of Battered Immigrant Women, or for technical assistance on the legal rights of immigrant women and children in immigration, public benefits, social services, domestic violence or family law matters, contact the Immigrant Women Program of the NOW Legal Defense and Education und at (202) or iwp@nowldef.org. *** This Article was prepared with the assistance of Negar Ashtari, a legislative intern with the Immigrant Women Program of the NOW Legal Defense and Education und. 95 Published by Digital American University Washington College of Law,

3 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 I. Introduction...97 II. United States Immigration Laws Historically Fostered Domestic Abuse A. U.S. Immigration Law s Roots in Coverture B. Enhanced Danger to Battered Immigrants: The Immigration Marriage Fraud Amendments of III. Recent Changes in United States Immigration Laws that Attempt to Decrease the Frequency of Domestic Abuse A Battered Spouse Waiver: Congress First Attempt to Reform Immigration Laws to Offer Protection For Battered Immigrants B. The Violence Against Women Act of Congressional Intent Self-Petitions Under VAWA Suspension of Deportation and Cancellation of Removal Under VAWA Credible Evidence Standard VAWA Implementation IV. Post-1994 Changes to United States Immigration Laws A. Immigration Laws and Welfare Reforms of Exemption from the Three-Year and Ten-Year Bars Confidentiality Rules Public Benefits Access for Battered Spouses and Children of Citizens and Lawful Permanent Residents B. Access to Legal Services Corporation Services For Battered Immigrants C. A Catch-22 for Battered Immigrants: VAWA s Unfulfilled Promises The Sunset of INA Section 245(i) Devastating Effects for VAWA Self-Petitioners a. Risk of Abuse Abroad b. Loss of Custody of the Children c. Abuser Kidnapping the Children d. Shame and Loss of Familial Support e. Lack of Physical and Mental Health Care Abroad f. Poor Socio-political Conditions Abroad Infeasibility of Consular Processing for VAWA Self-petitions Extreme Hardship Public Benefits Authorized by IIRAIRA and Adverse Public Charge Determinations V. VAWA 2000 s Legislative Solutions A. Improved and Expanded Access to VAWA Immigration Protection Easing VAWA Requirements Expanded Categories B. Improved Access to Public Benefits C. Restoration of 1994 VAWA Protections Obtaining Permanent Residence Status in the United States Waiver for Crimes of Domestic Violence Filing Motions to Reopen D. Access to Funding Programs E. Removal of Procedural Barriers

4 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND Changes to Immigration Status Waivers F. Creation of an Immigrant Crime Victim Visa Protection for Certain Crime Victims a. Criminal Activity b. Who Qualifies c. Who May Certify d. Some Family Members of the Crime Victim May Be Protected Procedures Work Authorization, Confidentiality and Credible Evidence Standard Discretionary Adjustment to Permanent Resident Status VI. Future Legislative Efforts on Behalf of Battered Immigrants VII. Conclusion Appendix 1: Legislative Changes Contained in VAWA Appendix 2: Comparison of VAWA 2000 and U-visa Options I. INTRODUCTION Violence against women is not limited by borders, culture, class, education, socio-economic level or immigration status. A recent survey co-sponsored by the National Institute of Justice and the Centers for Disease Control and Prevention found that approximately 4.8 million intimate partner rapes and physical assaults are perpetrated against women annually. 1 United States Surgeon Generals have warned repeatedly that family violence poses the single largest health threat to adult women 2 and is also detrimental to their children. or women and their children who have immigrated to the United States, the dangers faced in abusive relationships are often more acute. 3 Historically, these dangers have been aggravated by immigration laws. Immigrant women not only face pressures of cultural assimilation but pressures of maintaining cultural traditions as well. They face language barriers, economic insecurity, and discrimination due to gender, race or ethnicity. Additionally, the problems of domestic violence are terribly exacerbated in marriages where one spouse is not a citizen and the non-citizen s legal status 1. PATRICIA TJADEN & NANCY THOENNES, EXTENT, NATURE AND CONSEQUENCES O INTIMATE PARTNER VIOLENCE: INDINGS ROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY, iii (Nat l Inst. of Just. & Ctrs. for Disease Control and Prevention, NCJ , 2000). 2. S. REP. NO , at (1993). 3. LESLYE E. ORLO & NANCY KELLY, A Look at the Violence Against Women Act & Gender-Related Political Asylum, Vol. 1, No. 4 VIOLENCE AGAINST WOMEN 380 (1995). Published by Digital American University Washington College of Law,

5 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 depends on his or her marriage to the abuser. 4 The battered immigrant s ability to obtain or maintain lawful immigration status may depend on her relationship to her United States citizen or lawful permanent resident spouse and his willingness to file an immigrant relative petition on her behalf. 5 The same dynamic occurs any time immigration law gives an abusive spouse total control over the immigration status of his spouse and children. This can occur in cases of persons who have received from the Immigration and Naturalization Service ( INS ) legal permission to live and work in the United States through an immigrant or non-immigrant visa; their spouses and children are then awarded derivative immigration status 6 so that they can join him in the United States. Examples of persons whose spouses and children can be awarded derivative visas include: diplomats, persons who work for religious or international organizations, students, and persons who receive visas related to their work. 7 The immigration law gives spouses control over the immigration status of their family members and forces many battered immigrant women to be trapped and isolated in violent homes, afraid to turn to anyone for help. They fear continued abuse if they stay and deportation if they attempt to leave. 8 A survey among Latina immigrants in the Washington, D.C. area found that 21.7% of the battered immigrant women survey participants listed fear of being reported to immigration as their primary reason for remaining in an abusive relationship. 9 Researchers also found that an immigrant woman who experiences physical and/or sexual abuse was a victim of her abuser s threats of 4. H.R. REP. NO , at (1993). 5. In this Article, victims of domestic violence will be referred to as she and perpetrators of domestic violence will be referred to as he. Government and academic studies consistently find that the majority of domestic violence victims are female and that batterers are overwhelmingly male. See CALLIE MARIE RENNISON & SARAH WELCHANS, INTIMATE PARTNER VIOLENCE, BUREAU O JUSTICE STATISTICS: SPECIAL REPORT, U.S. DEP T O JUSTICE (2000) (reporting that 85% of victimizations by intimate partners in 1998 were committed against women); BUREAU O JUSTICE STATISTICS, U.S. DEP T O JUSTICE, VIOLENCE BETWEEN INTIMATES 2-3 (1994); MARY P. KOSSET ET AL., AM. PSYCHOLOGICAL ASS N, MALE VIOLENCE AGAINST WOMEN AT HOME, AT WORK AND IN THE COMMUNITY, xiv-xv (1994); Russel P. Dobash, The Myth of Sexual Symmetry in Marital Violence, 39(1) SOC. PROBS. 71, (1992). 6. Immigration and Nationality Act of 1952 ( INA ), 203(d), 8 U.S.C. 1153(d) (1999) (providing that the status of the spouse and children thus derives from the person with the visa). 7. Id. at 1153(b) CONG. REC. S10,195 (daily ed. Oct. 11, 2000) (providing a section-bysection summary of the Battered Immigrant Women Protection Act of 2000). 9. Marry Ann Dutton et al., Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas, 7 GEO. J. ON POVERTY L. & POL Y 245, 271 (2000). 4

6 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND 99 deportation, threats of refusal to file immigration papers, and threats to call the INS at over ten times the rate experienced by a psychologically abused woman. 10 Abuser s threats of deportation are powerful, ongoing and play upon real, deep-seated fears of deportation. Abusers use constant threats to deport spouses and children as very powerful tools to prevent battered immigrant women from seeking help and to keep them in violent relationships. 11 This is true when the spouse or child is undocumented and when the spouse or child s legal immigration status is based upon a derivative visa tied to the abuser s immigration visa. 12 This article provides a broad overview of the history of legislative protections for battered immigrant women in the United States. Historically, United States immigration laws placed full and absolute control over the battered immigrant s legal immigration status in the hands of the United States citizen or lawful permanent resident spouse or parent, or the immigrant spouse or parent receiving permission from INS to live, work or study in the United States. When the spouse or parent used domestic violence to control his spouse or children, the structure of United States immigration laws fostered abuse. 13 However, since 1990, Congress has passed a series of amendments to immigration, public benefits, criminal and legal services laws that reflect an evolving understanding of the dangers that domestic violence poses to society as a whole, and to all individual victims women, children, citizens, and non-citizens alike. This emerging understanding has led to the passage of critical legal protections, including welfare access for a broad array of battered immigrant women and their children who have been or are being abused in the United States Id. at CONG. REC. S10,192 (daily ed. Oct. 11, 2000) (statement of the joint managers). 12. Orloff & Kelly, supra note 3, at Id. at On December 7, 2000, the INS issued proposed regulations that for the first time formally offered an avenue for some battered immigrant women who had fled domestic violence in their home countries and come to the United States to receive gender-based asylum. Asylum and Withholding Definitions: Proposed Rule, Immigration and Naturalization Service, 65 ed. Reg. 76, (proposed Dec. 7, 2000). Published by Digital American University Washington College of Law,

7 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 II. UNITED STATES IMMIGRATION LAWS HISTORICALLY OSTERED DOMESTIC ABUSE A. U.S. Immigration Law s Roots in Coverture Early United States immigration laws incorporated the concept of coverture, which was a legislative enactment of the common law theory that the husband is the head of the household. 15 Immigration laws in the 1920s gave male citizens and lawful permanent residents control over the immigration status of their immigrant wives and children. 16 The law required a husband to either file a petition for his wife or accompany her when she applied for immigration status. 17 emale citizens or lawful permanent residents could not, however, file petitions for their male immigrant spouses. 18 This approach grew out of the doctrine of coverture that was a part of United States common law at that time. 19 Coverture was defined as the legal principle under which the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection, and cover, she performs everything. 20 Coverture was so much a part of United States law that from through 1922, 22 when a United States citizen woman married a man from another country, she lost her United States citizenship. 23 Between 1907 and 1922, all American women acquired their husband s nationality upon marriage. 24 The doctrine of coverture 15. S. REP. NO , at 414 (1951). 16. Act of May 29, 1921, Pub. L. No. 5, 2(a), 42 Stat. 5 (1921). 17. Act of May 26, 1924, Pub. L. No. 139, 4(a), 43 Stat. 155 (1924). 18. Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 583, (1991). 19. See generally id. at W. BLACKSTONE, COMMENTARIES ON THE LAWS O ENGLAND 432 (1765). Also incorporated into common law was the husband s right of chastisement to restrain his wife from misbehavior, thus creating an environment in which spousal abuse was condoned or even encouraged. 21. The Act of March 2, 1907, Chap. 2534, 34 Stat (1907), provided that any American woman who marries a foreigner shall take the nationality of her husband. 22. Section 7 of the Act of September 22, U.S.CA. 9, commonly referred to as the Cable Act, repealed a portion of the law of 1907 through which American women lost citizenship upon marriage and provided that women would not cease to be citizens upon marriage unless they formally renounced citizenship. However, the Cable Act did not automatically restore citizenship already lost by women upon marriage between 1907 and In re Watson s Repatriation, 42. Supp. 163 (E.D. Ill. 1941). 23. In re Watson s Repatriation, 42. Supp. at Marian L. Smith, Any Woman Who is Now or May Hereinafter be Married

8 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND 101 further gave a husband the right to chastise or even kill his wife if he deemed it necessary punishment. 25 Coverture as a state sanctioned legal principle created a social climate that condoned and even encouraged domestic violence. Although subsequent legislation, particularly the Immigration and Nationality Act of 1952 ( INA ), changed the statutory language to make the immigration laws gender-neutral giving the same women ability to confer legal immigration status on her spouse as men had, 26 the impact of the spousal sponsorship laws is still rooted in the coverture mentality. 27 Since the power of sponsorship and autonomous action lies with the citizen or lawful permanent resident spouse, 28 and because the majority of immigrant spouses and victims of domestic violence are women, the ramifications of spousal sponsorship are most serious for women. 29 The law gives so much power to the citizen or resident spouse that the immigrant spouse is faced with an impossible choice: either remain in an abusive relationship or leave, become an undocumented immigrant and be potentially deprived of home, livelihood and perhaps child custody. 30 B. Enhanced Danger to Battered Immigrants: The Immigration Marriage raud Amendments of 1986 In 1986, Congress codified a number of immigration law changes that further jeopardized the safety of battered immigrant women and their children. The Immigration Marriage raud Amendments of 1986 ( IM A ) 31 significantly enhanced the control a citizen or lawful Women and Naturalization, ca , PROLOGUE: QUARTERLY O THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, available at publications/prologue/natural1.htm (last modified April 5, 2001). 25. Calvo, supra note 18, at INA 101(a)(27), 204, 205 (codified as amended in scattered sections of 8 U.S.C.). 27. Calvo, supra note 18, at INA 204(a), 205; 8 U.S.C. 1154; 8 C..R (a)(1). 29. Women and children have constituted approximately two-thirds of the legal immigration into the United States since the 1930s STATISTICAL YEARBOOK O THE IMMIGRATION AND NATURALIZATION SERVICE 24 (1997). When both legal and undocumented immigration are combined, more than half of immigrants are women. P. Hondagneu-Sotelo, Gender and Contemporary U.S. Immigration, 42 AM. BEHAVIORAL SCIENTIST 565 (1999). According to congressional reports, three to four million women in the United States are abused by their husbands each year, a figure far higher than the number of men abused by their wives. S. REP. NO , at 30 (1990); H.R. REP. NO , at 26 (1993). 30. Calvo, supra note 18, at The Immigration Marriage raud Amendments of 1986 ( IM A ), Pub. L. No , 100 Stat (1986). Published by Digital American University Washington College of Law,

9 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 permanent resident spouse had over his alien spouse s immigration status. The IM A re-confirmed the original power of the lawful permanent resident or citizen spouse to control the immigration status of his alien spouse by allowing her to become a lawful permanent resident only if he petitions for her. The IM A created a presumption in immigration law that all marriages were fraudulent until proven to be valid. In an effort to ensure that lawful permanent resident status was granted only to spouses in valid marriages to United States citizens or lawful permanent residents, the IM A required that immigrant spouses who gained residency based on a marriage to a United States citizen or lawful permanent resident fulfill a two-year conditional residency requirement before being granted full lawful permanent residency. 32 To prove that the marriage was valid, the law required a joint petition to be filed ninety days before the expiration of two years from when the immigrant spouse first gained her legal status, possibly followed by a scheduled joint interview with an INS official. 33 The law did not require the citizen or lawful permanent resident spouse to file immigration papers for her, or to follow through with the joint petition. Nor did the law oblige him to stay in the marriage for the two-year period during which his wife was dependent on him for her immigration status. This legislative attempt to curb fraud and expose sham marriages did, however, place battered immigrant women at the mercy of their husbands. 34 It also placed in jeopardy the immigration status of any children whose avenue to attain lawful permanent resident status was based on their mother s marriage to a citizen or lawful permanent resident. If the mother s legal immigration status terminated, so did the children s status terminate. 35 The IM A contained two provisions that allowed the Attorney General to change the immigrant spouse s conditional resident status to a permanent resident status without satisfying the requirements of the joint petition and interview if she satisfied the criteria for extreme hardship or good faith/good cause. 36 However, these discretionary waivers proved to be limited and narrow in scope. They U.S.C. 1186a U.S.C. 1186a(c). 34. William R. Tamayo, The Evolution of U.S. Immigration Policy, in DOMESTIC VIOLENCE IN IMMIGRANT AND RE UGEE COMMUNITIES: ASSERTING THE RIGHTS O BATTERED WOMEN 8 (Debbie Lee et al. eds., 1991) U.S.C. 1186a(a)(1),(b) U.S.C. 1186a(c)(4). 8

10 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND 103 did little to alleviate the burdensome effect of the IM A on battered immigrant women. 37 In fact, despite congressional intent, both of the waivers were interpreted by INS not to apply, in most cases, to immigrant women who were abused by their citizen or lawful permanent resident husbands. 38 In the case of the extreme hardship waiver, the immigrant spouse had to demonstrate that extreme hardship would result from deportation, considering only those circumstances that arose during the period that the alien spouse was admitted for permanent residence on a conditional basis. 39 Even if successful in demonstrating these facts, the immigrant spouse was not guaranteed a waiver; discretion was left to the INS. 40 Some INS officials interpreted the extreme hardship waiver as not really applying to battered immigrant women because they suffered hardship in the United States and deportation would not likely increase the hardship they may suffer. 41 This misguided view was prevalent among INS officials at the time who had no understanding of the dynamics of domestic violence and who had received no training on the issue. This INS opinion ignored the extreme hardship inherent in being a victim of ongoing and often escalating instances of domestic violence 42 and the additional difficulties deportation posed for battered women. 43 This approach did not recognize the extreme psychological harm that domestic violence causes, 44 the effect that carrying out the abuser s threats of deportation can have on the 37. Calvo, supra note 18, at Id U.S.C. 1186a(c)(4) U.S.C. 1186a(c)(4) (using the operative language in the Attorney General s discretion ). 41. See Calvo, supra note 18, at 610 (arguing that deportation adds to the trauma already suffered in the battery). 42. Marry Ann Dutton & Giselle Hass, Use of Expert Testimony Concerning Battering and Its Effects on Battered Women, in Domestic VIOLENCE AND IMMIGRATION: APPLYING THE IMMIGRATION PROVISIONS O THE VIOLENCE AGAINST WOMEN ACT: A TRAINING MANUAL OR ATTORNEYS AND ADVOCATES, app. (Bette arlow et al., 2000); MARRY ANN DUTTON, EMPOWERING AND HEALING THE BATTERED WOMAN: A MODEL OR ASSESSMENT AND INTERVENTION (1992); TJADEN & THOENNES, supra note 1, at Affidavit of Dr. Marry Ann Dutton, para (May 10, 1996) [hereinafter Dutton Affidavit] (on file with the authors). 44. TJADEN & THOENNES, supra note 1, at iv; Marry Ann Dutton, Psychological and Sociological Dynamics of Domestic Violence, in LORIDA DOMESTIC VIOLENCE LAW, , (Susan Swilhart ed., 1995); Angela Browne, Violence Against Women by Male Partners: Prevalence, Outcomes, and Policy Implications, AM. PSYCHOLOGIST (1993); Dianne ollingstad et al., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. AM. VIOLENCE (1990). Published by Digital American University Washington College of Law,

11 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 victim and her children, 45 and the harm to the battered immigrant survivor of domestic violence that can come from severing her from the counseling, support systems and legal protections she needs to overcome the physical and psychological injuries she has suffered as a result of the domestic violence perpetrated against her by her citizen or lawful permanent resident spouse. 46 Such views were also premised on the erroneous belief that deportation would bring an end to the domestic violence. This perception ran counter to experts understanding of the dynamics of domestic violence. irst, carrying out the deportation of an abused immigrant spouse or child made the government an accomplice in the abuse. Abusers of immigrant women use threats of deportation to prevent their victims from reporting the abuse and cooperating in prosecutions. When the government deports an abused spouse, government officials are in effect carrying out the abuser s threats. Second, deporting an immigrant domestic violence victim does not keep the victim safe from ongoing abuse. Abusers who are citizens and lawful permanent residents may freely travel abroad at any time to any place. In many instances, these abusers will follow their victims to their home countries and continue the abuse in a place where there are often no laws or law enforcement efforts to stop them. In other cases, the abuser s family members in the home country continue to abuse and terrorize the domestic violence victim and her family members. inally, the societal cost of deporting immigrant domestic violence victims is high. Abusers of immigrant spouses and children who cannot be held accountable for their crimes and go on to abuse other intimate partners in the future. urther, if battered immigrant spouses who report abuse are deported, word of these deportations will spread and will have a chilling effect on other immigrant victims of domestic violence, making them reluctant to seek any help from the justice system. Adopting a similarly restrictive and arbitrary approach, the INS insisted that for an immigrant spouse to obtain lawful permanent residency under the good faith, good cause criterion, the immigrant spouse would have had to initiate divorce proceedings herself. This promoted a race to the courthouse between the immigrant wife seeking a waiver and the husband trying to block her 45. Dutton Affidavit, supra note Dutton Affidavit, supra note 43, 11; Giselle Aguilar Hass et al., Lifetime Prevalence of Violence Against Latina Immigrants: Legal and Policy Implications, in DOMESTIC VIOLENCE: GLOBAL PERSPECTIVES (2000). 10

12 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND 105 ability to attain the waiver by being the one to initiate divorce proceedings. 47 The immigrant spouse who married in good faith, but who had good cause to divorce because of the domestic violence could not obtain this waiver unless she won the race to the courthouse. This waiver, as implemented by the INS, did not take into consideration the difficulties involved in leaving an abusive marriage, finding a lawyer, and locating the financial resources to finance divorce litigation. If the battered immigrant lost the race to the courthouse, neither the fact that the battered immigrant woman lived in a state with no-fault divorce laws nor the fact that the husband was ultimately found to be at fault played any role in the immigration case if she did not initiate the divorce proceeding. 48 The standard of goodness in good cause, good faith waiver cases was itself also questionable. In final evaluation, the good faith, good cause waiver did not afford any meaningful help for battered immigrant women. This was particularly true in light of the fact that none of the INS officials administering these waivers received any training on domestic violence nor were they aware of how the dynamics of domestic violence affected family relationships. III. RECENT CHANGES IN UNITED STATES IMMIGRATION LAWS THAT ATTEMPT TO DECREASE THE REQUENCY O DOMESTIC ABUSE A Battered Spouse Waiver: Congress irst Attempt to Reform Immigration Laws to Offer Protection or Battered Immigrants In 1990, Congress enacted the battered spouse waiver, which was the first piece of legislation that recognized domestic violence as a problem experienced by immigrant wives dependent on their spouses for immigration status. 49 The INA was amended to include a new battered spouse waiver that attempted to assist immigrants abused by their citizen or lawful permanent resident spouse and trapped by the IM A laws in abusive marriages. 50 The battered spouse waiver offered relief to battered immigrant spouses. IM A was amended to no longer require the immigrant spouse to be the one initiating divorce and to not require marriage termination for a good cause. The 47. Calvo, supra note 18, at Id. 49. Immigration Act of 1990, 701, Pub. L. No , 104 Stat (1990) (codified as amended at 8 U.S.C. 1186a(c)(4)). See also Conditional Basis of Lawful Permanent Residence for Certain Alien Spouses and Sons and Daughters; Battered and Abused Conditional Residents, 56 ed. Reg. 22,635 (May 16, 1991) (to be codified at 8 C..R. pt. 216) (Interim Rule) U.S.C. 1186a(c)(4) (1994). Published by Digital American University Washington College of Law,

13 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 battered spouse waiver further exempted immigrants, who were battered or subjected to extreme cruelty by their citizen or permanent resident spouse and who had already acquired their conditional residency, from the joint petitioning process. 51 The battered spouse waiver defined domestic violence as battering or extreme cruelty. 52 This definition of domestic violence was derived from the evolving international law definition of domestic violence, which included some forms of emotional abuse. 53 This definition was more inclusive than the domestic violence definition used in most state protection orders and criminal domestic violence statutes, which only covered actions that violated criminal laws including threats, attempts, and violation of civil protection orders. 54 The battered spouse waiver s definition of domestic violence was based on international rather than United States law. This is similar to the approach United States immigration law has taken in other contexts where protections are being offered for humanitarian reasons Tamayo, supra note 34, at U.S.C. 1186a(c)(4); Calvo, supra note 18, at [V]iolence against women in the family and society was pervasive and cut across lines of income, class and culture.... U.N. E.S.C. Res. 15, U.N. ESCOR, 1st Sess., 30th plen. mtg., Annex, 23, U.N. Doc. E/RES/1990/15 (1990). [V]iolence against women means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Declaration on the Elimination of Violence Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Agenda Item 111, U.N. Doc. A/RES/48/104 (1994). 54. See Catherine. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women, 21 HO STRA L. REV. 801, (1993) (noting that only thirteen innovative state statutes recognized some form of emotional abuse as a basis to issue a protection order). See, e.g., DEL. CODE ANN. tit. 10, 945 (Supp. 1992) (insulting, taunting, and other conduct likely to cause humiliation, degradation, or fear); NEV. REV. STAT. ANN (5) (1995) (knowing, purposeful or reckless course or conduct to harass). The Immigration and Naturalization Act s Battered Spouse Waiver provisions recognize that emotional abuse is a form of spousal abuse. See 8 U.S.C. 1886a(c)(4)(C). The INS has defined battering or extreme cruelty in its regulations to include, but not be limited to: [B]eing the victim of any act or threatened act of violence, including forceful detention which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but are part of an overall pattern of violence. Immigrant Petitions, 8 C..R (c)(vi) (2001). 55. Historically, refugee and asylum laws have offered discretionary protections to persons who have a well-founded fear of persecution if returned to their home countries. Other evidence of discretionary humanitarian protections include parole power which typically arises when someone needs to enter the United States for 12

14 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND 107 While the battered spouse waiver helped battered immigrant women and their children who were locked in abusive marriages for two years by the IM A, problems remained. The 1990 law allowed the coverture-based control of the earlier immigration legislation to continue. An immigrant spouse still could become only a resident if her citizen or resident spouse sponsored her. If the citizen or resident spouse never initiated the immigration process for his immigrant spouse, or if he began the process and later withdrew the application, the battered immigrant spouse was barred from attaining legal immigration status without her abuser s help. Additionally, the INS implemented the battered spouse waiver in an extremely narrow way. The INS required battered immigrants applying for battered spouse waivers based on extreme cruelty to submit, along with their application, evidence from a licensed mental health professional. 56 Since the number of mental health professionals with training on domestic violence is very low, and the number who also are bilingual and bicultural are even lower, few battered immigrant spouses were able to obtain the required mental health professional evaluation. 57 Those living in communities where such mental health services existed were often barred access because they could not muster the financial resources to pay for the required mental health evaluation. 58 This mental health expert requirement focused on the victim s injuries rather than abuser s actions 59 and severely limited the number of battered immigrants who had suffered extreme cruelty to be granted the relief. 60 medical, humanitarian, or other public interest purposes. 56. Conditional Basis of Lawful Permanent Residence Status, 8 C..R (e)(3)(iv)-(vii) (2001). 57. Ignatius Bau & William R. Tamayo, Immigration Marriage raud Amendments of 1986 (Marriage raud Act) and Other Related Issues, in DOMESTIC VIOLENCE IN IMMIGRANT AND RE UGEE COMMUNITIES: ASSERTING THE RIGHTS O BATTERED WOMEN 15 (Debbie Lee et al. eds., 1991). 58. Id. 59. H.R. Rep. No , 38 (1993) 60. or these reasons, the Violence Against Women Act of 1994 ( VAWA 1994 ) imposed a new credible evidence standard for battered spouse waiver cases that forced the INS to accept any credible evidence of abuse. VAWA 1994 is part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No , 108 Stat (1994). This immigration provision of VAWA is codified at INA 216(c)(4), 8 U.S.C. 1186a(c)(4). The legislative history of VAWA 1994 stated that the INS was to accept any credible evidence and explicitly directed the Attorney General to consider any credible evidence submitted in support of hardship waivers based on battering or extreme cruelty whether or not the evidence is supported by an evaluation by a licensed mental health professional. H.R. Rep. No , at 38. This credible evidence standard has since been applied to all immigration cases involving domestic violence and has been extended in VAWA 2000 to apply in immigration cases involving immigrant crime victims. See, e.g., Published by Digital American University Washington College of Law,

15 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 B. The Violence Against Women Act of 1994 The Violence Against Women Act of 1994 ( VAWA 1994 ), included as part of the Violent Crime Control Act of 1994, was the first piece of federal legislation in the United States specifically designed to help curb domestic violence. VAWA 1994 s overarching goals were to enhance justice system protection for battered women and to expand collaboration and cooperation between battered women s supportive services and the criminal and civil justice systems. 61 VAWA 1994 recognized that battered women s advocates played a key role in assuring successful interventions that stop domestic violence. The VAWA 1994 provisions provided funding for police, prosecutors, battered women service providers, state domestic violence coalitions, and a national domestic hotline. 62 unds were made available to improve services to victims, to improve police department and prosecutor s office procedures for handling domestic violence cases, to educate and train community members and professionals about domestic violence, and to foster collaboration and cooperation between battered women s advocates and justice system personnel. 63 VAWA 1994 provided incentives to jurisdictions seeking funding to abolish practices that were harmful to battered women. Jurisdictions seeking funding were required to certify that they were not using practices in domestic violence cases that were harmful to victims. Each jurisdiction had to certify in their funding application that they do not charge fees in protection order cases, that they have policies and procedures in place prohibiting dual arrest and mutual protection orders, and that they have pro or mandatory arrest policies in place for domestic violence cases. 64 VAWA 1994 included provisions guaranteeing full faith and credit for civil protection orders issued in other states 65 and made interstate domestic violence Victims of Trafficking and Violence Protection Act of 2000, 1504(a), Pub. L. No , 114 Stat 1464 (2000) [hereinafter VAWA 2000} (requiring the Attorney General to consider any credible evidence when considering applications to cancel removal orders against a battered spouse or child). 61. See VAWA 2000, 146 CONG. REC. S10192 (Oct. 11, 2000) (statement of Joint Managers) (discussing the original purpose of VAWA 1994). 62. VAWA , 40231, Id. See Grants to Combat Violent Crimes Against Women ( STOP Grants ) VAWA ; Grants to Encourage Arrest Policies ( Arrest Grants ), VAWA ; Rural Domestic Violence and Child Abuse Enforcement Assistance ( Rural Grants ), VAWA VAWA VAWA

16 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND 109 and interstate violation of protection orders a federal crime. 66 Additionally, VAWA 1994 included special protections for battered immigrant women and children abused by United States citizen or lawful permanent resident spouses or parents Congressional Intent When VAWA 1994 was enacted, Congress viewed the act as an essential step in forging a national consensus that our society will not tolerate violence against women 68 and the terror it spawns. 69 Congress found that domestic violence threatens the lives, safety and welfare of millions of women and children in the United States every year. An estimated 30.4% of all women in the United States are physically abused by a husband or male co-habitant at some point in their lives. 70 Congress found that abuse of intimate partners is serious, chronic, and national in scope. 71 Congressional reports found that in 1991 at least 21,000 domestic crimes against women were reported to police every week, 72 and that domestic violence crimes are vastly under reported. 73 According to congressional reports, three to four million women in the United States are abused by their husbands each year. 74 Surgeon Generals have repeatedly warned that family violence poses the single largest health threat for adult women. 75 One million women each year seek medical attention for injuries that are the results of crimes committed by male partners. 76 One-fifth of all 66. VAWA (codified at 18 U.S.C ). 67. VAWA 1994, S. REP. NO , at (1993). 69. STA O THE SENATE COMM. ON THE JUDICIARY, 102D CONG., VIOLENCE AGAINST WOMEN: A WEEK IN THE LI E O AMERICA, 40 (Comm. Print 1992). 70. TJADEN & THOENNES, supra note 1, at iv. 71. S. REP. NO , at 37 (1990). See also Tjaden & Thoennes, supra note 1, at NCJ 39 (noting that 65.5% of women physically assaulted by an intimate are victimized multiple times by the same partner and for 69.5% of victims of intimate assault, the victimization lasts for longer than one year). 72. S. REP. NO , at See id. (claiming that unreported domestic crimes were estimated to be more than three times the level of reported crimes); BUREAU O JUSTICE STATISTICS, INTIMATE PARTNER VIOLENCE 7 (2000) (reporting that 53% of domestic violence victims report the abuse to the police); M. L. Coulter & K. Kuehnle, Police-Reporting Behavior and Victim-Police Interactions as Reported by Women in a Domestic Violence Shelter, J. INTERPERSONAL VIOLENCE 14 (Dec. 1999) (finding that fifty-eight percent of the victims reported the violence). 74. S. REP. NO , at 30; H.R. REP. NO , at 26 (1993). See also Klein & Orloff, supra note S. REP. NO , at Id. at 41; S. REP. NO , at 37. Published by Digital American University Washington College of Law,

17 Journal of Gender, Social Policy & the Law, Vol. 10, Iss. 1 [2002], Art JOURNAL O GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1 reported aggravated assaults involving bodily injury occur within intimate relationships 77 and fifty percent of the time domestic violence against female victims results in injury. 78 The Department of Justice has reported that more than one in three women who seek care in emergency rooms for violence-related injuries are victims of domestic violence. 79 inally, family violence accounts for a significant number of murders. One-third of all women who are murdered die at the hands of husbands or boyfriends. 80 Congress also noted that United States immigration laws were part of a larger failure to confront the domestic violence issue. The House of Representatives Committee on the Judiciary found that domestic abuse problems are terribly exacerbated in marriages where one spouse is not a citizen and the non-citizens legal status depends on his or her marriage to the abuser, 81 because it places full and complete control of the alien spouse s ability to gain legal status in the hands of the citizen or permanent resident. 82 A battered spouse may be deterred from taking action to protect herself and her children including filing for a civil protection order, filing criminal charges or calling the police because of the threat or fear of deportation. 83 As a result, many immigrant women live trapped and isolated in violent homes, afraid to talk to anyone about the violence and afraid to turn for anyone for help. Immigrant battered women fear continued abuse if they stay and deportation if they report the abuse and/or attempt to leave. 84 Newly published research confirms that an abuser s control over a battered immigrant s immigration status and threats of deportation are very powerful tools that lock battered immigrants in abusive relationships, cut them off from help and enhance the lethality of the 77. STA O THE SENATE COMM. ON THE JUDICIARY, 102D CONG., VIOLENCE AGAINST WOMEN: A WEEK IN THE LI E O AMERICA 52 (Comm. Print 1992). 78. BUREAU O JUSTICE STATISTICS, INTIMATE PARTNER VIOLENCE 1 (2000). 79. See A. Ganley, Introduction to IMPROVING THE HEALTH CARE RESPONSE TO DOMESTIC VIOLENCE: A TRAINER S MANUAL OR HEALTH CARE PROVIDERS 4 (1998). 80. S. REP. NO , at H.R. REP. NO , at Id. 83. See id. (conveying that under current U.S. immigration law, a legal permanent resident or U.S. citizen may file a relative visa petition requesting legal status for his spouse based on a valid marriage). See also ROBIN L. CAMPO ET AL., UNTOLD STORIES: CASES DOCUMENTING ABUSE BY U.S. CITIZENS AND LAW UL RESIDENTS ON IMMIGRANT SPOUSES (1993); LESLYE ORLO ET AL., NEW DANGERS OR BATTERED IMMIGRANTS: THE UNTOLD E ECTS O THE DEMISE O 245(i) (2000). 84. See H.R. REP. NO , at (1993) (noting that the legal resident can revoke the petition at any time prior to the issuance of permanent legal status to the immigrant woman). 16

18 Orloff and Kaguyutan: Offering a Helping Hand: Legal Protections for Battered Immigrant 2002] O ERING A HELPING HAND 111 violence battered immigrant s experience. A survey conducted among Latina immigrants in the D.C. area found that 49.3% reported physical abuse by an intimate partner during their lifetimes, 11.4% reported sexual abuse, and 42.1% reported severe physical or sexual abuse. 85 Among immigrant Latinas who were married or formerly married the lifetime abuse rate raises to 59.5%. 86 Despite the fact that 50.8% of the battered immigrant participants in the survey were married to citizens or permanent residents who could file immigration papers for them, 72.3% of abusive citizen or resident spouses never file immigration papers for their abused spouses and the 27.7% who do file hold their spouses in the marriage for almost fours years before filing immigration papers. 87 urther, this same research found that immigration-related abuse, including threats of deportation against an immigrant spouse or intimate partner usually exists only when physical or sexual abuse is also present. 88 Thus, the existence of immigration-related abuse in a relationship provides corroborating evidence of physical or sexual abuse. urther, when immigration related abuse occurs in relationships that do not yet include physical or sexual abuse, this factor may be a predictor that the lethality of the violence in the relationship is likely to escalate. 89 In crafting VAWA 1994 s immigration provisions, the impact of domestic abuse on children was of significant concern to Congress. 90 When battered immigrant women are locked by immigration laws in abusive marriages to citizen and permanent resident spouses, they are forced to raise their children in an environment where children learn that violence is an appropriate means of addressing anger and frustration. 91 Research suggests that children under the age of twelve 85. Hass et al., supra note 46, at Dutton et al., supra note 9, at See Dutton et al., supra note 9, at 259 (noting that 72.3% of citizens or permanent residents that batter their spouses never file immigration papers while 27.7% file the papers after approximately four years). 88. Hass et al., supra note 46, at or undocumented Latinas married to citizens or lawful permanent residents the battering rate may even rise as high as 67%. 89. Id. at See H.R. REP. NO , at 38 (noting that the legislation encourages women in abusive households to report the abuse by allowing them to petition the U.S. government for legal status themselves). 91. In over 50% of domestic violence homes where women are abused so are the children. Children were involved or present during 43% of all domestic violence offenses in It is estimated that almost ten million children in America are at risk of being exposed to domestic violence each year. As violence against the mother becomes more severe and more frequent, children experienced 300% increase in physical violence by the male batterer. ADVISORY COUNCIL ON DOMESTIC VIOLENCE, CHILDREN AND DOMESTIC VIOLENCE REPORT 1-3, 5 (1998). Published by Digital American University Washington College of Law,